Himachal Pradesh High Court Weekly Round-Up November 4 - November 10 2024

Virender Singh and others. Versus State of H.P. and another 2024 LIveLaw (HP) 58

Su-Kam Power System Ltd. & Another versus State of Himachal Pradesh & Others 2024 LiveLaw (HP) 59

National Highway Authority of India v. Narayan Das 2024 LiveLaw (HP) 60

NHPC Ltd. Vs. Principal Commissioner, CGST and Ors 2024 LiveLaw (HP) 61

M/s A.M. Enterprises v. State of Himachal Pradesh & Ors 2024 LiveLaw (HP) 62

Tushar Sharma v. State Bank of India 2024 LiveLaw (HP) 63

Kundlas Loh Udyog vs. Union of India and others 2024 LiveLaw (HP) 64

Su-Kam Power System Ltd. and Anr.v.State of Himachal Pradesh and Ors 2024 LiveLaw (HP) 65

Sumeet Kumar & Anr. v. State of Himachal Pradesh & Anr 2024 LiveLaw (HP) 66

The State of H.P. & Anr. V. M/s Garg Sons Estate Promoters Pvt. Ltd 2024 LiveLaw (HP) 67

Dharmesh Sharma Vs Tanisha Sharma 2024 LiveLaw (HP) 68

Navya & others Vs State of H.P. & others 2024 LiveLaw (HP) 69

National Highway Authority Of India vs Rishi Singh & Ors 2024 LiveLaw (HP) 70

State of H.P. and another v. M/s Gurcharan Industries 2024 LiveLaw (HP) 71

M/s Lakhwinder Singh Stone Crusher v. Union of India & ors 2024 LiveLaw (JKL) 72

Judgments/Orders:

Criminal Complaint Cannot Be Quashed Solely On Grounds Of Being Initiated Due To Political Vendetta: Himachal Pradesh High Court

Case Title: Virender Singh and others. Versus State of H.P. and another

Citation: 2024 LIveLaw (HP) 58

The Himachal Pradesh High Court held that a criminal complaint cannot be quashed solely because it was initiated due to political rivalry. The court was hearing a petition for the quashing of an FIR filed against the petitioners under Section 39(1)(a) of the Himachal Pradesh Excise Act and Section 171E read with Section 34 of the Indian Penal Code. The FIR stemmed from allegations that the petitioners had distributed liquor during Panchayat elections to influence voters.

Tax Department Can't Create Charge On Property Of Corporate Debtor During Currency Of Moratorium Imposed By NCLT: Himachal Pradesh HC

Case Title: Su-Kam Power System Ltd. & Another versus State of Himachal Pradesh & Others

Citation: 2024 LiveLaw (HP) 59

The Himachal High Court held that once the corporate debtor is directed to be liquidated by the NCLT u/s 33(5) of Insolvency & Bankruptcy Code (IBC), no legal proceeding could be instituted by or against him by the Tax Authorities.

Thus, the High Court clarified that the red entry/charge created by the Revenue Department on the property of the petitioner-company during the currency of the moratorium imposed by the NCLT, would be void in law.

Benefit Of Section 4 Of Limitation Cannot Be Extended To Thirty Days Provided By Proviso To Section 34(3): Himachal Pradesh High Court

Case Title: National Highway Authority of India v. Narayan Das

Citation: 2024 LiveLaw (HP) 60

While hearing a petition under Section 37 of the Arbitration Act, the Himachal Pradesh High Court bench of Justice Bipin Chander Negi upheld the order passed by the district court, dismissing a Section 34 petition as barred by limitation. The court held that the benefit of Section 4 of the Limitation Act could only be extended to the prescribed period of limitation, which in the case of Section 34 is three months.

Himachal Pradesh HC To Decide If 12% Free Power Supply To States By Hydro Power Projects Can Be Subjected To GST, Stays 1000+ Cr. Demand Against NHPC

Case title: NHPC Ltd. Vs. Principal Commissioner, CGST and Ors.

Citation: 2024 LiveLaw (HP) 61

The Himachal Pradesh High Court will decide whether free power supply of 12% to the States where distress is caused by hydro power projects, can be subjected to Service Tax or GST.

Meanwhile, Division bench of Chief Justice M.S. Ramachandra Rao and Justice Satyen Vaidya has stayed the demand made by the Additional Commissioner of CGST Department on the National Hydroelectric Power Corporation Private Limited.

Himachal Pradesh HC Says Rule 86B Of CGST Rules Limiting Discharge Of Output Tax Liability Through ITC In Electronic Credit Ledger Appears To Be Ultra Vires HPGST Act But Leaves Issue Open

Case title: M/s A.M. Enterprises v. State of Himachal Pradesh & Ors.

Citation: 2024 LiveLaw (HP) 62

The Himachal Pradesh High Court observed that Rule 86B of the Central Goods and Services Tax (CGST/HPGST) Rules, 2017, which restricts use of Input Tax Credit (ITC) in the Electronic Credit Ledger for releasing Output tax, appears to be ultra vires the HP Goods and Services Tax Act 2017.

Rule 86B stipulates that ITC in the Electronic Credit Ledger can be used to discharge 99% of output tax liability. 1% of the output tax liability is to be paid in cash.

Negotiable Instruments Proceeding Under Section 138 Does Not Abate On Initiation Of Insolvency Proceeding: Himachal Pradesh High Court

Case Title: Tushar Sharma v. State Bank of India

Citation: 2024 LiveLaw (HP) 63

The High Court observed that both proceedings under section 138 and under the IBC could proceed simultaneously. The High Court further observed that the moratorium under section 14 of the IBC is applicable on corporate debtor's liabilities and not to the personal criminal liability of the individuals. It was further opined by the court that the section 138 proceedings are criminal in nature and not like a debt recovery process governed by the IBC.

Recovery Officer Can't Attach Taxpayer's Overdraft Account With Banks By Exercising Power U/s 226(3): Himachal Pradesh HC Quashes Attachment Order

Case Title: Kundlas Loh Udyog vs. Union of India and others

Citation: 2024 LiveLaw (HP) 64

Observing Cash Credit account or overdraft is capable of being attached u/s 226(3) of Income tax Act, the Himachal Pradesh High Court turned down the decision of Tax recovery officer in passing the order of attachment of Cash Credit Account.

Explaining the relationship between debtor & creditor, the High Court clarified that bank does not become a debtor to its customers and cannot hold money for account of its customers merely because it has provided a facility of overdraft to its customers.

Himachal Pradesh High Court Affirms Clean Slate Theory, Declares Tax Authorities' Charge Over Properties After Acquisition Plan Void And Illegal

Case Title: Su-Kam Power System Ltd. and Anr.v.State of Himachal Pradesh and Ors.

Citation: 2024 LiveLaw (HP) 65

In an important judgment delivered by the Himachal Pradesh High Court, the claims and red entries of the state tax department over the properties of Su-Kam Power Systems Ltd.(Corporate Debtor) were quashed. The corporate debtor was sold as a going concern under the provisions of the Insolvency and Bankruptcy Code (IBC). The court held that once the company was acquired and resolution plan was approved, all prior claims including claims of the tax authorities are extinguished.

Contractual Service To Be Counted For Seniority And Annual Increments: Himachal Pradesh Court

Case Title: Sumeet Kumar & Anr. v. State of Himachal Pradesh & Anr.

Citation: 2024 LiveLaw (HP) 66

The court held that contract service shall be counted for the purpose of annual increment and pensionary benefits. Especially considering that the petitioners herein are on better footing than the petitioners in those petitions as they were appointed according to the prescribed procedure provided under R & P Rules while Petitioners in those petitions were appointed by following the Policy adopted by the State, but dehors the R & P Rules.

Applicability Of Section 5 Of Limitation Act To Petition U/S 34 Of Arbitration Act Is Excluded: Himachal Pradesh HC

Case Title: The State of H.P. & Anr. V. M/s Garg Sons Estate Promoters Pvt. Ltd

Citation: 2024 LiveLaw (HP) 67

The Himachal Pradesh High Court Bench of Ms. Justice Jyotsna Rewal Dua held that the prescribed period under Section 34(3) of the Arbitration Act is three months and further that given the language used in proviso to Sub-Section 3 of Section 34 of the Act, applicability of Section 5 of Limitation Act to the petition under Section 34 of the Act has been excluded.

Recorded Telephonic Conversations Are Not Admissible As Evidence Due To Infringement Of Privacy: Himachal Pradesh High Court

Case Title: Dharmesh Sharma Vs Tanisha Sharma

Citation: 2024 LiveLaw (HP) 68

The Himachal Pradesh High Court held that recorded telephonic conversations are inadmissible as evidence if obtained without consent, as their use would infringe on an individual's right to privacy.

Children From Void Marriages Entitled To Birth Registration, To Be Acknowledged Under Law: HP High Court

Case Title: Navya & others Vs State of H.P. & others

Citation: 2024 LiveLaw (HP) 69

The High Court of Himachal Pradesh ruled that children born from void marriages cannot be denied birth registration, thereby affirming their right to legal recognition regardless of their parents' marital status.

Justice Jyotsna Rewal Dua, presiding over the case, emphasized the inherent rights of children to be acknowledged under the law, remarking, “The fact that they are living beings and are there needs to be acknowledged in law.”

S. 29A Of Arbitration Act Not Applicable To Arbitration Proceedings Which Commenced Before 2015 Amendment: Himachal Pradesh HC

Case Title: National Highway Authority Of India vs Rishi Singh & Ors

Citation: 2024 LiveLaw (HP) 70

The Himachal Pradesh High Court bench of Justice Jyotsna Rewal Dua affirmed that provisions of Section 29A of the Act will not be applicable to the arbitration proceedings that had started before the Arbitration & Conciliation (Amendment) Act, 2015 came into force.

Objection To Tribunal's Jurisdiction U/S 16 Of Arbitration Act Must Be Raised Before Or At Time Of Statement Of Defence: Himachal Pradesh HC

Case Title: State of H.P. and another v. M/s Gurcharan Industries

Citation: 2024 LiveLaw (HP) 71

The Himachal Pradesh High Court bench of Justice Jyotsna Rewal Dua affirmed that a party is bound by virtue of Section 16(2) of the Arbitration Act to raise any objection it may have to the jurisdiction of the Tribunal before or at the time of submission of its statement of defence, and at any time thereafter it is expressly prohibited.

Himachal Pradesh HC Upholds Levy Of GST On Mining Royalty Payable Under Mining Concession Granted By State

Case title: M/s Lakhwinder Singh Stone Crusher v. Union of India & ors.

Citation: 2024 LiveLaw (HP) 72

The Himachal Pradesh High Court dismissed a writ petition challenging notifications issued by the Central government for levy of GST on Royalty paid by a Mineral Concession Holder for mining concession granted by the State.